Wednesday, 5 March 2008

Discrimination is an evil. But should it be fought by prohibitions or by employing active countermeasures? These questions confront nearly every organisation, including the European Union. In the case of the EU the dimension of Union and member state powers is added.

A deeper understanding of these issues presupposes some knowledge of the legal basis on which the European Union acts in questions relating to discrimination.

Since the Treaty of Lisbon has been agreed between the member states’ governments, it is natural to take the amending treaty as our point of departure.

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In Part Two – Non-discrimination and citizenship, the intergovernmental conference (IGC 2007) inserted an Article 16e on combating discrimination into the Treaty establishing the European Community (TEC). The Treaty of Lisbon (ToL) gave the treaty a new name: the Treaty on the Functioning of the European Union (TFEU). Here is the text of the IGC 2007 (Official Journal 17.12.2007 C 306/50):

33) An Article 16 E shall be inserted, with the wording of Article 13; in paragraph 2, the words ‘when the Council adopts Community’ shall be replaced by ‘the European Parliament and the Council, acting in accordance with the ordinary legislative procedure, may adopt the basic principles of the Union's’ and the words at the end of the paragraph ‘it shall act in accordance with the procedure referred to in Article 251’ shall be deleted.

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The main clue offered by the IGC is ‘the wording of Article 13’, which means that we turn to the current TEC (in the latest consolidated version, together with the TEU, OJ 29.12.2006 C 321 E/48):

Article 13 TEC

1. Without prejudice to the other provisions of this Treaty and within the limits of the powers conferred by it upon the Community, the Council, acting unanimously on a proposal from the Commission and after consulting the European Parliament, may take appropriate action to combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation.

2. By way of derogation from paragraph 1, when the Council adopts Community incentive measures, excluding any harmonisation of the laws and regulations of the Member States, to support action taken by the Member States in order to contribute to the achievement of the objectives referred to in paragraph 1, it shall act in accordance with the procedure referred to in Article 251.

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The Zen of consolidation is to let the current text, the horizontal amendments and the express rewording flow together into a harmonious whole. Since the Lisbon Treaty uses one set of numbering, but offers renumbering for ultimate use, we mention both the ToL and the later Article numbers:

Article 16e TFEU (ToL), renumbered Article 19 TFEU

1. Without prejudice to the other provisions of the Treaties and within the limits of the powers conferred by them upon the Union, the Council, acting unanimously in accordance with a special legislative procedure and after obtaining the consent of the European Parliament, may take appropriate action to combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation.

2. By way of derogation from paragraph 1, the European Parliament and the Council, acting in accordance with the ordinary legislative procedure, may adopt the basic principles of the Union's incentive measures, excluding any harmonisation of the laws and regulations of the Member States, to support action taken by the Member States in order to contribute to the achievement of the objectives referred to in paragraph 1.

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We notice that both paragraphs changed, although the first exclusively by the way of insidious horizontal amendments. Luckily, we can check our result against the ones who have gone before us: the consolidated TFEU versions on offer from the IIEA, the UK’s FCO, Statewatch or Open Europe. The practically minded, of course, turn to one of these consolidated versions immediately.

Web addresses and additional information on consolidated language versions of the Lisbon Treaty can be found in my latest general update:

Although the Treaty of Lisbon amends the current treaties, the general purpose of the IGC 2007 was to enact at least the institutional innovations of the IGC 2004, if the Mandate did not stipulate otherwise.

Substantially, even if not formally, the two preceding stages are therefore of interest to the student of EU law and politics.

The European Convention, chaired by Valéry Giscard d’Estaing, proposed the following Article III-8 in the draft Treaty establishing a Constitution for Europe, Part III The policies and functioning of the Union, Title II Non-discrimination and citizenship (OJ 18.7.2003 C 169/29-30):

Article III-8 Draft Constitution

1. Without prejudice to the other provisions of the Constitution and within the limits of the powers conferred by it upon the Union, a European law or framework law of the Council of Ministers may establish the measures needed to combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation. The Council of Ministers shall act unanimously after obtaining the consent of the European Parliament.

2. European laws or framework laws may establish basic principles for Union incentive measures and define such incentive measures, to support action taken by Member States, excluding any harmonisation of their laws and regulations.

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The IGC 2004 agreed on the following wording, in Part III The policies and functioning of the Union, Title II Non-discrimination and citizenship, Article III-124 (OJ 16.12.2004 C 310/56):

Article III-124 Constitution

1. Without prejudice to the other provisions of the Constitution and within the limits of the powers assigned by it to the Union, a European law or framework law of the Council may establish the measures needed to combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation. The Council shall act unanimously after obtaining the consent of the European Parliament.

2. By way of derogation from paragraph 1, European laws or framework laws may establish basic principles for Union incentive measures and define such measures, to support action taken by Member States in order to contribute to the achievement of the objectives referred to in paragraph 1, excluding any harmonisation of their laws and regulations.

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The Convention introduced the ‘consent’ of the European Parliament instead of mere consultation as in the current 13(1) TEC. This was taken up in the Constitution and in the Lisbon Treaty, although the real dampener of expectations is that there has been no movement on the requirement of unanimity in the Council for action (measures).

The second paragraph, on incentive measures (supporting action) already adopted under the co-decision procedure, was given a somewhat strange form by the Convention, to ‘establish basic principles for Union incentive measures and define such incentive measures’ instead of adopting them, and the Constitution essentially followed in its footsteps.

Even odder is the wording of paragraph 2 of the Lisbon Treaty, when the European Parliament and the Council, acting in accordance with the ordinary legislative procedure ‘may adopt the basic principles of the Union's incentive measures’. If only basic principles can be adopted, what happens to the needed concrete measures?

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The principle of non-discrimination is abundantly represented in the amended treaties. Some examples:

Article 1a TEU (ToL), renumbered Article 2 TEU, with non-discrimination as a value common to the Member States.

Article 2 TEU (ToL), renumbered Article 3 TEU, with the aim of the Union to combat social exclusion and discrimination.

Article 5b TFEU (ToL), renumbered Article 10 TFEU, with the aim to combat discrimination when defining and implementing Union policies. The “sister” of Article 16e (new 19) we studied today, and therefore rendered here in full to refresh our memories:

“In defining and implementing its policies and activities, the Union shall aim to combatdiscrimination based on sex, racial or ethnic origin, religion or belief, disability, ageor sexual orientation.”

Article 16d TFEU (ToL), renumbered Article 18 TFEU, prohibiting discrimination on grounds of nationality, where measures can be adopted according to the ordinary legislative procedure.

Article 16e TFEU (ToL), renumbered Article 19 TFEU, the various stages of which we have studied in this post, on action to combat discrimination and on basic principles for incentive measures.

Article 30 TFEU (ToL), renumbered Article 36 TFEU, on discrimination or a disguised restriction on trade between Member States.

Article 31 TFEU (ToL), renumberd Article 37 TFEU, on discrimination regarding the conditions under which goods are procured and marketed between nationals of Member States.

Article 34 TFEU (ToL), renumbered Article 40 TFEU, on the prohibition of any discrimination between producers or consumers within the Union concerning the common agricultural market organisation.

Article 39 TFEU (ToL), renumbered Article 45 TFEU, on the prohibition against discrimination based on nationality between workers in the context of free movement.

Article 75 TFEU (ToL), renumbered Article 95 TFEU, which prohibits discrimination in the case of transport within the Union.

Article 87 TFEU (ToL), renumbered Article 107, which allows, as compatible with the internal market, state aid having a social character, granted to individual consumers, if granted without discrimination related to the origin of the products concerned.

Article 94 TFEU (ToL), renumbered Article 114 TFEU, with the prohibition of national provisions as means of arbitrary discrimination or a disguised restriction on trade between Member States, within the context of approximation (harmonisation) of the laws of the member states.

Article 184 TFEU (ToL), renumbered Article 200 TFEU, prohibiting direct or indirect discrimination between imports from various Member States when introducing or changing customs duties on goods imported into the associated overseas countries and territories.

Article 280a TFEU (ToL), renumbered Article 326 TFEU, which requires that enhanced cooperation complies with the Treaties and Union law, and that it does not undermine the internal market or economic, social and territorial cohesion and that it shall not constitute a barrier to or discrimination in trade between Member States or distort competition between them.

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The listing shows us that there are two main contexts and groups of anti-discriminatory provisions in the EU treaties:

We have prohibitions, action to combat and incentive measures concerning discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation.

The second group is related to the internal market, meant to function as if there were no national borders between the member states.

Another question worth mentioning is the distinction between prohibitions of discrimination and active measures to mitigate evils, and the relative merits of these approaches.

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Since today’s article regarded the legal basis for action to combat discrimination and for adopting basic principles of the Union's incentive measures, we conclude with suggested reading for those who want to know what the European Community (Union) actually does.